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California's New Groundwater Law Seeks To Guide Planning Without Adjudication

NEWS

December 11, 2014

California's New Groundwater Law Seeks To Guide Planning Without Adjudication

By Susan Bruninga

Dec. 4 — California's new law establishing a framework for the sustainable management of its groundwater attempts to accomplish what previously had mostly been produced through protracted litigation, a water law attorney said Dec. 4.

Moreover, the Groundwater Sustainable Management Act gives local water districts the time and opportunity to develop their own plans through a public process and work toward long-term sustainability without state interference unless their plans fall short, Eric Garner, managing partner with Best, Best & Krieger LLP in Los Angeles, said. Garner, who sits on the advisory board for Water Law & Policy Monitor, spoke at the fall conference of the Association of California Water Agencies.

Prior to the act, Garner said, conflicts about groundwater pumping were resolved by a judge.

“Just sue them all and let a judge sort it out,” he said of the approach often used to resolve groundwater conflicts.

The new law, he said, provides a generous timeline for establishing a sustainability agency and then developing and implementing a plan to manage groundwater use.

Sustainable management of the state's groundwater is important because 80 percent of Californians rely on the resource, he said. Fifteen million acre-feet were pumped last year, and California withdraws more groundwater than the rest of the states combined, he said.

As California's population continues to grow from its current 38 million, a more sustainable system for managing withdrawals is critical to ensure the state can meet demand.

Targeting Most At-Risk Basins

Under the new law, which targets the most at-risk groundwater basins, local authorities have two years—until 2017—to set up groundwater sustainability agencies. Agencies overseeing the most basins identified as in overdraft have until 2020 to adopt groundwater sustainability plans. High- and medium-priority basins have until 2022 to adopt the plans. Local agencies have another 20 years to implement the plans and “get the basins in to sustainable yield.”

Sustainable means a safe yield, or the amount of groundwater that can be extracted without creating an “undesirable result,” such as land subsidence, chronic low levels of groundwater, reductions in storage and significant surface water depletion, Garner said.

“So you have five years in critically overdrafted basins to put together a plan, but you don't have to be at safe yield in five years,” he said. “You would never get that kind of time in courtroom. A judge would never allow that long.”

Sustainability plans lay out a number of actions, including milestones for achieving certain objectives and monitoring requirements for groundwater levels, subsidence, water quality and surface flow, among other things, Garner said. The plans must identify recharge areas and instances where surface water is available to use for “in lieu recharge,” and report total water use, he said.

The law gives sustainability agencies the authority to impose fees, either fixed or based on the amount of water pumped, for the management of the plans. They also can control the extraction of water and require measurement and reporting, Garner said.

Previously, most of these actions were mandated by a court after lengthy and costly adjudication proceedings.

“This is what a court can do now,” he said. “What this legislation has done is provide everyone a non-judicial forum to do the same thing.”

The act also provides a public process for achieving its goal for the management and use of groundwater in a manner that can be maintained for 50 years.

The State Water Resources Control Board is authorized to step in when the provisions of the law are not being met, such as the requirement to create a sustainability agency and develop a plan within a specific time frame.

“If we don't do it, they will, and you get to pay their attorneys fees,” Garner said.

The state may also step in if it deems the sustainability plan inadequate.

The biggest risk facing the state, in terms of managing its water resources, is its growing population, which currently stands at about 38 million, he said. Thus, the sustainable use of its groundwater is critical.

“Our water law has been ridiculed,” he said of how California has legislated its water use for more than 100 years, but “it's been flexible enough to allow California to transform itself” economically from being just a mining state to the sixth largest economy in the world.

“That transformation could not have happened with a static law,” he said.

The state’s next challenge is implementing the groundwater management law, Garner said.

“Let’s all roll up our sleeves and get the job done,” he said.

To contact the reporter on this story: Susan Bruninga in Washington at sbruninga@bna.com

To contact the editor responsible for this story: Greg Henderson in Washington at ghenderson@bna.com

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